EPA Clean Power Plan guarantees legal challenges, frustrates farmers

08/05/15 3:33 PM

WASHINGTON, August 4, 2015 - After a year of battles over the Obama administration’s controversial Clean Power Plan (CPP) proposal to limit power plant carbon emissions for the first time, the EPA finalized the plan. What the administration couldn’t achieve through cap-and-trade legislation in a divided Congress, it now hopes to mandate through EPA regulation.

In a White House ceremony Monday to announce the final rule, President Barack Obama said, “There never have been limits on how much carbon power plants can emit into the air. For the sake of the planet, that has to change.

Even before the final regulations were released, more states seemed poised to join Oklahoma’s stated refusal to implement the Clean Power Plan mandates. As details emerged over the weekend, presidential candidate Sen. Marco Rubio, R-Fla., charged at the Koch brothers donors meeting in California that implementing the plan would be “catastrophic” and “make the cost of electricity higher for millions of Americans.”

Responding to the plan’s release, Senate Environment and Public Works Committee Chairman Jim Inhofe, R-Okla., said Tuesday that because the rules were written “behind closed doors” without adequate stakeholder input, “it is likely a court will strike the rules.”

Nebraska’s Attorney General Doug Peterson said his state “will challenge the final rule and EPA’s legal authority to adopt the regulations.”

In response to such charges – which President Obama said were to be expected – EPA Administrator Gina McCarthy noted that EPA evaluated more than 4.3 million public comments on its proposal, held hundreds of stakeholder meetings, and responded with significant changes in the final rule.

The final plan raises renewables’ share of the U.S. electricity mix to 28 percent by 2030, up from 22 percent in the proposed rule. McCarthy said the change reflects how rapidly renewable power has grown, how wind and solar costs continue to decline, and how well the nation’s utilities have incorporated renewable power

McCarthy also said that “the Clean Power Plan is projected to cut the average American’s monthly electricity bill by 7 percent in 2030.”

The CPP final rule forecasts a 32 percent reduction in power plant carbon emissions by 2030, up from a 30 percent reduction in the June 2014 proposed rule. EPA credits the change largely to a faster deployment of non-polluting renewable energy like wind and solar.

Under the final rule, states get extra time to comply. State implementation plans are due Sept. 6, 2016, at least in draft form. But states can request a two-year extension to Sept. 6, 2018 for submitting a final plan, with a progress report due Sept. 6, 2017. As well, compliance will begin in 2022 instead of 2020 and “emission reductions are phased in on a gradual ‘glide path’ to 2030.” Also in response to states’ concerns, the final rule provides a model plan which states can use for compliance.

In its 1,560 pages, EPA’s final Clean Power Plan rule gives fossil fuel power plants a choice of options to reduce carbon emissions, including:

“direct investment in efficiency improvements and in lower- and zero-carbon generation,”

“cross-investment in these activities through mechanisms such as emissions trading approaches,”

and “reduction of higher-carbon generation.”

EPA’s final rule also includes a new “Clean Energy Incentive Program” designed to reward states for making a head start on compliance before the 2022 deadline for compliance.

The extra time for states to comply may provide an added benefit for the administration. In a series of lawsuits, at least 14 states have challenged the Clean Power Plan as already causing economic harm. But so far, every challenge has failed.

The courts have ruled that it was premature to challenge the plan before its rules became final. Now that the CPP is final, challengers must prove they would suffer “irreparable harm” if they are forced to wait for a court ruling rather than getting an immediate injunction to block CPP implementation. The postponed compliance mandate may make it harder to demonstrate harm.

Perhaps more troubling for the Administration is that it failed to bring along traditional supporters, who look for agriculture to play a role in clean energy production and carbon sequestration.

“Climate disruption, linked to the emission of greenhouse gases (GHGs), poses severe threats to family farmers, ranchers, and rural communities across the country,” said National Farmers Union President Roger Johnson. “NFU appreciates the administration’s work to address the causes of climate change.

“Unfortunately, the administration is missing an important opportunity to constructively engage family farmers in its efforts to build climate resiliency. Farmers can avoid GHG emissions and sequester carbon in the soil. Given the correct policy and financial incentives, farmers can mitigate climate change less expensively and more quickly than the rural power cooperatives that serve them. Instead, these cooperatives will have to raise rates to comply with today’s rule.

“The final rule does not allow states to comply by working with farmers to secure offsets for their emissions. NFU urges the U.S. Environmental Protection Agency (EPA) to consider such offsets in state compliance plans due next summer. This would allow farmers to help cooperatives manage rates and provide value to farmers subject to rate increases. NFU stands ready to assist the administration in its efforts to mitigate the effects of climate change.”

The 25x’25 Alliance weighed in with similar concerns.

“EPA's failure to allow states to count soil carbon sequestration achieved through agricultural practices toward their respective targets is a major disappointment. This oversight eliminates the nearest-term, lowest-cost mechanism for reducing carbon in our atmosphere. Still, the 25x'25 Alliance looks forward to reviewing the final rule and helping our partners capitalize on any renewable energy opportunities that this new policy will provide,” the Alliance said in a statement.

This week’s guest on Open Mic is Ken Dallmier, President and COO of Clarkson Grain Company. While the global grain business is dominated by supply, demand and now trade wars, this Illinois-based company functions under a customer-focused mindset. Dallmier says this generation of consumer demand is dominated by a different set of social values leading to questions over the way food is produced and the prices they’re willing to pay. Sustainability, organic and non-GMO are providing farmers an income stream isolated from traditional market forces.

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The world of agriculture extends beyond what’s growing in your field or living in your barn, and here at Agri-Pulse, we understand that. We make it our duty to inform you of the most up-to-date agricultural and rural policy decisions being made in Washington D.C. and examine how they will affect you – the farmer, the lobbyist, the government employee, the educator, the consultant and the concerned citizen.